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HomeMy WebLinkAbout994-R CatoneIn re: John D. Catone STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 Before: File Docket: 93- 085 -C2 Date Decided: 2/15/96 Date Mailed: 3/1/96 Daneen E. Reese, Chair Austin M. Lee, Vice Chair Roy W. Wilt John R. Showers Rev. Joseph G. Quinn Boyd E. Wolff The State Ethics Commission received a request for reconsideration on January 16, 1996, with respect to Order No. 994 issued on December 15, 1995. Pursuant to Section 21.29 of the Regulations of the Commission, the discretion of the State Ethics Commission to grant reconsideration is properly invoked as follows: 521.29. Finality: reconsideration. (b) Any party may ask the Commission to reconsider an order or opinion within 15 days of service of the order or opinion. The requestor shall present a detailed explanation setting forth the reason why the order or opinion should be reconsidered. (c) A request for reconsideration filed with the Commission will delay the public release of an order, but will not suspend the final order unless reconsideration is granted by the Commission. (d) A request for reconsideration may include a request for a hearing before the Commission. (e) Reconsideration may be granted at the discretion of the Commission if: 51 Pa. Code §21.29(b), (c), (d), (e). (1) A material error of law has been made. (2) A material error of fact has been made. (3) New facts or evidence are provided which would lead to reversal or modification of the order or opinion and if these could not be or were not discovered by the exercise of due diligence. This adjudication of the Commission is hereby issued which sets forth the Discussion4"and Reconsideration Order. This Reconsideration Order and Order 994 are final and shall be made available as public documents on the fifth (5th) business day following the date of issuance of this Order. Catone, Order No. 994 -R Page 3 additionally note even if Catone was merely a member of the Governor's Office staff, he would be indisputably subject to the Ethics Law as an "executive -level state employee ": "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. 65 P.S. §402. Catone's second contention is that the Commission erroneously concluded that he violated Section 3(a) of Act 9 of 1989 when he utilized Commonwealth equipment for personal purposes. Catone proffers this assertion without any analysis or support. As to this violation, Catone also argues that the Commission did not make the "necessary finding" that any actions taken by him had more than a de minimis economic impact on the Commonwealth of Pennsylvania, and that the Commission "misconstrued the concept of `de minimis' failing to find that the loss to the Commonwealth was greater than de minimis." Petition for Reconsideration, paragraph 2, at 5. The Commission's findings on this violation of Section 3(a) are supported by clear and convincing evidence of record. Respondent has not proffered any factual or legal support for his contrary view. Contrary to Respondent's claim, the Commission specifically found the economic impact which resulted from this conflict of interest to be greater than de minimis. (See, Order No. 994 at 52). Furthermore, even if we had not specifically so stated, we would not view such a finding to be a "necessary finding," for reasons discussed below. As for Respondent's mistaken belief that a loss to the Commonwealth must be found, Section 3(a) of Act 9 of 1989 is couched in terms of a private pecuniary benefit. Section 3(a) does not require a loss by anyone or anything, let alone a loss by a governmental body: "Conflict" or "conflict of interest." --Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a Catone, Order No. 994 -R Page 4 member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. 65 P.S. 402 (Emphasis added). Indeed, a conflict of interest can occur even where the governmental body saves money. Cappabianca, 89- 014 -R; Harper, 94 -001; Zangrilli, Order No. 946. Respondent's third argument is that the Commission erroneously concluded that he violated Section 3(a) of Act 9 of 1989 when he performed private work for NVS while on Commonwealth time. Catone maintains that the Commission made no findings that his actions occurred on Commonwealth time, that he engaged in a conflict of interest, or that his actions had more than a de minimis economic impact on the Commonwealth of Pennsylvania. Again, this violation was supported by clear evidence, not the least of which consisted of admissions where he bragged that in the course business (day]" he spent 2'/, hours on NVS business. coupled with others referenced in Order No. established the violation. As for Respondent's complaint that the Commission made no finding that the Respondent engaged in a conflict of interest, the finding of a violation of Section 3(a) of Act 9 of 1989 implicitly so finds. Likewise, the very finding of the Section 3(a) violation implicitly precludes the existence of a de minimis economic impact. It is not necessary for the Commission, in every instance where it finds a Section 3(a) violation, to expressly state that the exceptions to the definition of "conflict of interest" do not apply. Finally, we reject Respondent's fourth argument, pertaining to his violation of Section 3(c): Section 3. Restricted activities (c) No public official, public employee or nominee or candidate for public office shall solicit or accept, anything of monetary and convincing Catone's own of "a normal This remark, 994, clearly Catone, Order No. 994 -R Page 5 65 P.S. §403(c). value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding of that public official, public employee or nominee that the vote, official action, or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. Respondent argues that, by definition, he could not violate Section 3(c) because he "had no vote, could take nonofficial action or exercise any official judgment which he could influence in exchange for anything of monetary value." Respondent's Petition for Reconsideration, paragraph 4(a), at 6. Respondent additionally argues that the only action found by the Commission to have been taken by him was with regard to PEBTF, an agency which is not part of the Commonwealth, and that NVS did not have -- and was not found to have had -- any interest in any contracts with any agency of the Commonwealth. All of Catone's above arguments are to no avail. The elements of Catone's violation of Section 3(c) are fully established by his own written words, with which he solicited a monthly salary from NVS based upon an understanding that his official action and judgment would be influenced thereby. Catone cannot escape the consequences of his actions by claiming, now that he has been caught, that he did not have the ability to deliver what he promised. He did. In sum, no argument has been raised by the Respondent which would meet the requisite standard for reconsideration. No material error of law has been established. No material error of fact has been established. No new facts or evidence have been provided which would lead to reversal or modification of the Order. Respondent has failed to meet his burden of proof to establish any need for reconsideration. The Petition for Reconsideration is denied. In re: John D. Catone File Docket: 93- 085 -C2 Date Decided: 2/15/96 Date Mailed: 3/1/96 RECONSIDERATION ORDER NO. 99 -R 1. The Petition for Reconsideration of Catone, Order No. 994, is denied. BY THE COMMISSION, &44U et DANEEN E. REESE, CHAIR